Values and Factors Giovanni Sartor EUI - European University Institute of Florence CIRSFID - Faculty of law, University of Bologna Guangzhou, China April 11, 2018 G. Sartor (EUI-CIRSFID) Values and Factors 1 / 23
Rights and social goals as values/principles Both individual valuable interests (to freedom, health, work, property, etc.) and social goals (public health, economic development, environmental protection) may viewed: not only and always as rigid constraints, but also as scalable goals to be taken into account and balanced in legal decisions This happens not only when no rules are there, but also when there is a conflict between rules, or between rules and principles G. Sartor (EUI-CIRSFID) Values and Factors 2 / 23
Basic notion Definition (Differential impact over a value) The differential impact over value v of making choice a rather than b in case c , denoted as ∆ a [ b ] ( v ) is the difference in the overall benefit or utility c resulting from the fact that making choice a in case c realises v to a different extent than making choice b would. G. Sartor (EUI-CIRSFID) Values and Factors 3 / 23
Example The choice to allow the construction of the new factory ( a ) in comparison to the choice of not allowing it ( b ), delivers differential benefits relatively to different values in case c : ∆ a [ b ] ( production ) , c ∆ a [ b ] ( employment ) , ∆ a [ b ] ( environment ) . c c Such benefits can have different importance, and different polarities. E.g.: ∆ a [ b ] ( production ) and ∆ a [ b ] ( employment ) may be positive, and c c ∆ a [ b ] ( environment ) may be negative. c Overall, decision a provides the aggregated differential benefit ∆ a [ b ] { production , employment , environment } , resulting from the sum c of the three separate values: ∆ a [ b ] ( production ) + ∆ a [ b ] ( employment ) + ∆ a [ b ] ( environment ) . It may c c c be positive or negative. G. Sartor (EUI-CIRSFID) Values and Factors 4 / 23
Priority relatively to values let us write a c ≻ { v } b c iff ∆ a [ b ] ( production ) > 0 c G. Sartor (EUI-CIRSFID) Values and Factors 5 / 23
Proportionality Many court adopt the proportionality approach. A legal measure which negatively affects an individual right is proportionate in case c when it contributes to a legitimate goal (suitability). There is one legitimate goal g such that α c ≻ { g } Nul c there is no other way to contribute to the same extent to that goal, which affects to a lesser extent the individual rights or social value at stake (necessity). There is no alternative choice β c such that β c � { g } α c and β c ≻ { v } α c The contribution to the legitimate goal no less important that the diminution of the right or value (proportionality in strict sense): β c ≻ { g , v } α c G. Sartor (EUI-CIRSFID) Values and Factors 6 / 23
Aspects to be taken into account in value-assessment different values, individual and social may be at stake(e.g., security, economic initiative, privacy, environmental protections) they can be realised up to different extents, delivering different benefits the change in the extent to which a values is realised determines a change in the extent to which the benefit resulting from the realisation of that value is realised. E.g. by reducing pollution, we increase the benefit resulting from less pollution. different values have different weights, i.e., the benefit that they provide may be more or less important G. Sartor (EUI-CIRSFID) Values and Factors 7 / 23
How to take a decision in cases in which different values are at stake Let decisions α c and β c have different impacts on economic development, employment, and environmental protection; or on privacy and security The easy case. Pareto superiority: α c is better (provides a larger benefit) than β c , there at least one value v such that α c ≻ { v } β c and no value u such that β c ≻ { u } α c (e.g., a new factory (in place of the old one) will promote both development and environment) The difficult case α c is better then β c relatively to some value and it is worse relatively to some others (e.g., a new factory will promote development, but demote environment) E.g. Interpretive choice α c is better relatively to economic development, but β c is better relatively to environmental protection G. Sartor (EUI-CIRSFID) Values and Factors 8 / 23
A famous German case (the Lebach Urteil Has the person the right that his name is not made in a documentary concerning a crime that he did 20 year ago? using the name would contributo to freedom of expression and information not using would contribute to privacy How shall we address the case: by comparing advantage that using the name would deliver relatively to freedom of expression and access to information, with the disadvantage that it delivers relatively to privacy. The case is discussed by Prof. Alexy G. Sartor (EUI-CIRSFID) Values and Factors 9 / 23
A recent case at the Court of Justice (Google-Spain) Has a person who went bankrupt 20 years ago the right that Google does not provide the possibility to find this information (searching with the person’s name)? The EU data protection directive allows for a data processing meant so satisfy a legitimate interest if it is not outweighed by the interest of the data subject. Allowing the search would contributo to freedom of expression and information, and economic initiative not allowing it would contribute to privacy G. Sartor (EUI-CIRSFID) Values and Factors 10 / 23
A set of cases For simplicity’s sake, I shall provide a set of made-up cases. These cases correspond however to issues that many data protection officers have to address in their daily work. They concern the on-line distribution, in a Facebook page, of the photo of a university student, without the student’s consent. Each case provides a different factual constellation, but all such cases share the following features: G. Sartor (EUI-CIRSFID) Values and Factors 11 / 23
The value framework The cases allows for two possible decisions: P d (The distribution d of the photo is permitted) F d (The distribution d of the photo is forbidden) Such decisions may affect three values: Privacy ( Priv ), Freedom of expression ( FrEx ), Access to information ( AccInf ) G. Sartor (EUI-CIRSFID) Values and Factors 12 / 23
Description of the cases I Let us now describe each case, providing its decision and a description of the relevant circumstances c 1 : The photo of a student. The first case, let us call it c 1 , concerns the distribution of the student’s photo. The photo, in which the student is clearly identifiable, was taken while she was walking on the street, and was published without her consent. Decision is F d c 2 : The photo of a student at a graduation ceremony. Case c 2 , corresponds to c 1 , except for the fact that the photo was taken at the graduation ceremony, which is a public event. Decision is P d c 3 : The photo of student of student at a graduation ceremony, which focuses on the student. This case corresponds to c 2 , except for the fact that a large image of the student is at the centre of the photo. Decision is F d G. Sartor (EUI-CIRSFID) Values and Factors 13 / 23
Description of the cases II c 4 : The photo of a student at a graduation ceremony, which focuses on the student, while she is a speaker. This case corresponds to c 3 , except that the student is portrayed while making a speech. Decision is P d c 5 : The photo of a student at a graduation ceremony, which focuses on the student, while she is a speaker and has an embarrassing expression. . This case corresponds to C 5 , expect that the student is portrayed while she was sneezing in a very awkward way. Decision is F d c 6 : The photo of a student at a graduation ceremony, which focuses on the student, while she is both speaker and a chair. In this case the student, besides being a speaker, as in c 4 and c 5 , also is chair of the panel in which she is speaking. Differently from c 5 she has no embarrassing facial expression. Decision is F d G. Sartor (EUI-CIRSFID) Values and Factors 14 / 23
Value impacts The differential impact on the value of privacy, of having F d rather than P d in case c 1 . is the social and individual benefit provided by the increase in privacy obtained by prohibiting the publication of the photo, rather than permitting it. We can denote it by ∆ F d [ P d ] ( Priv ) c Similarly ∆ F d [ Priv ] ( FrEx , AccInf ) denotes the the extent to which in c c 1 the diminished realisation of freedom of expression and information resulting from F d would be detrimental. G. Sartor (EUI-CIRSFID) Values and Factors 15 / 23
Value-preferred decision Let us extract from the set V of all values at stake two mutually exclusive sets, the set of the values that would be promoted by a relatively b , denoted by V a [ b ] and the set of the values that would be promoted by b , relatively to a , denoted as V b [ a ] . In case c , decision a is value-preferred to b , if the advantage that a provides over values that a differentially promotes should be higher that advantage that b would provide relatively to the values it differentially promotes. a ≻ c b iff ∆ a [ b ] ( V a [ b ] ) > ∆ b [ a ] ( V b [ a ] ) c c G. Sartor (EUI-CIRSFID) Values and Factors 16 / 23
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